^We agree upon the law, settled by repeated adjudications, that tine master is hound to furnish safe .’appliances for his servants to /work with and a safe place to work; and, where he delegates such. / duty to his foreman or others, he is liable to a servant injured by the neglect of the foreman or those whom he selects. While the law is thus settled, there is always difficulty in its application to the facts of each particular case. Upon appeal, where the complaint has been dismissed, the plaintiff is entitled to the most favorable inferences to be drawn from the evidence. It will not be disputed that it was the duty of the defendant to furnish the plaintiff with a properly constructed scaffold or platform, or with the materials out of which such a platform could be constructed. If, with the latter, he and his fellow-servants, as a detail of their own work, had under*286taken- to construct t-he scaffold and had selected improper, where they might have chosen proper, materials, the defendant would not be liable for injuries resulting from such defective construction. Here,'however, the scaffold was erected ten days before the. accidefivj; and one week before the plaintiff went to work upon it; and the plaintiff was directed by the defendant’s foreman to get on this scaffold'£o do the ceiling ■ work. The scaffold was about ten or eleven feet "above the floor at the wall and about seven feet above the floor in frornt, and> unless properly constructed, was necessarily a dangerous pli-ce for the plaintiff and the other carpenters to work. That the ihuot in the sleeper made it dangerous- to use in the construction of the scaffold was fairly to- be inferred; and it is undisputed that the .plaintiff had no part in the selection óf the defective sleeper. When lie went to work he found the scaffold already erected ; and, having been ordered by the foreman to go to work thereon, he was justified^in assuming that the master had discharged the duty which rested uppn.kim of supplying a safe scaffold. I do not think this inferenceh's-dn any way weakened by the fact appearing that the scaffold was actiralj.y constructed by the_ ■other carpenters who had preceded the plaintiffkrrpon the work. If the plaintiff had assisted in its construction, or h&d^been present and working at the time it'was "erected, a different question would be presented. Where, however, as here, the plaining under what must be regarded as the . master’s instructions, wient_ to work upon the scaffold already erected, he had a riglif, to assume that the master had discharged the duty "of supplying a saüte scaffold. If the accident, instead of occurring on -this armory, had occurred "subsequently on another building which the defendant-was engaged' in constructing, .and to and upon which he had furnished for the use of the workmen this defective scaffold, I do. not think, as against a workman who had no previous knowledge of how or by whom the scaffold" was constructed, that the master could claim as matter of law that he was relieved from responsibility, because as "a matter of fact at some previous time the scaffold had been constructed by workmen in his employ. . I can see no distinction in principle between the position of" the plaintiff who came upon the building after the scaffold was erected,- with no knowledge of its prior history or hand in its construction as connected with this *287armory, and his position as affected hy a defective scaffold furnished in another building.
Upon the facts here appearing, I think the case is controlled by the decision in Kimmer v. Weber (151 N. Y. 418) and Bryer v. Foerster (9 App. Div. 542). In the former case, the learned judge writing the opinion at the General Term correctly stated the rule as follows (76 Hun, 483):. “Now, the defendants were bound to use all reasonable precaution necessary to make this scaffolding, upon which their employees were invited to stand and work, safe. The defendants personally do not appear to have paid any special attention to the construction of the scaffolding. That matter they committed to their foreman, Joseph Turner. But, as it was a duty which the defendants, as masters, owed to their employees, to exercise due diligence to make the scaffolding safe, Turner, in the performance of that duty, stood in the place of the masters. * * ■ * The situation is not.changed when the master intrusts the performance of a duty which he owes to the servant to some one else. In such case, he who performs the master’s duty stands in the master’s place, and his act is the act of the master.”
Upon the question of the plaintiff’s contributory negligence in not having observed the knot in the sleeper, I think, as I do upon the question of the defendant’s negligence, that it was for the jury, and the dismissal of the complaint being, in my opinion, erroneous, I dissent.
Van Brunt, P. J., concurred.
Judgment affirmed, with costs.